What do the new draft rules under the updated Telecom Act say?

The Department of Telecommunications (DoT) released four sets of draft rules under the Indian Telecommunications Act, 2023, on 30 August. Following the partial implementation of the Telecommunications Act in June, the DoT has been introducing rules to activate key elements of the updated telecom legislative framework.

These rules, once finalised, will replace the subordinate legislation of the Telegraph Act, 1885, which the Telecom Act superseded last year. Additional drafts may be issued to address other sections of the Act.

The current drafts address critical areas such as internet shutdowns, cybersecurity, surveillance, and the establishment of telecom infrastructure. According to union minister of communications Jyotiraditya Scindia, all rules and provisions of the new Telecom Act are expected to be notified within the next 180 days.

While the interception and telecom suspension rules largely follow existing regulations, the Critical Telecommunication Infrastructure Rules are new.

Interception Rules

The draft Interception Rules retain the existing provisions of Rule 419A from the Telegraph Rules, 1951, which allow interception orders to be issued by the union or state home secretary.

In urgent situations where this is not feasible, a joint secretary-level officer or the head of an authorised law enforcement agency can issue the order. The central government can designate agencies to intercept messages for reasons including national sovereignty, state security, foreign relations, public order or prevention of criminal activity.

The drafts include:

• Telecommunications (Critical Telecom Infrastructure) Rules, 2024

• Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules, 2024

• Telecommunications (Telecom Cyber Security) Rules, 2024

• Temporary Suspension of Telecommunication Services Rules, 2024

Additionally, recruitment rules for top DoT positions have been updated to align with the Telecom Act.

These draft rules are open for public comment for 30 days before finalisation. However, no significant regulatory changes from the current status quo are immediately evident.

The draft rules were issued under Sections 20(2)(a), 20(4), and 56(2)(t)(u) of the Telecommunications Act, 2023, which was enacted amid significant parliamentary disruption and received Presidential assent on 24 December 2023. Certain sections of the Act were brought into effect on 26 June 2024.

The Interception Rules, 2024, introduce new safeguards for situations where it is difficult to obtain an interception order from the competent authority. If an order issued in such cases is not confirmed within seven working days, the intercepted messages must be destroyed within two working days.

Additionally, these messages cannot be used for any purpose, including as evidence in court. This is a departure from the previous Telegraph Rules.

While the 1951 Rules required service providers and telegraph authorities to destroy interception directions with ‘extreme secrecy’, the Interception Rules, 2024, do not mandate such confidential destruction of orders. As a result, anonymised statistical data on interception orders will not be systematically maintained due to routine record destruction.

Furthermore, the new rules lack provisions for disclosing this information, leading to significant concerns about transparency and accountability in the handling of interception orders.

Also, the 2024 draft rules require interception orders to specify the authorised agency conducting the interception rather than the individual officer. Orders will be valid for up to 60 calendar days, with a possible renewal for 180 calendar days. The 1951 Rules did not specify ‘calendar days’, leaving room for potential delays.

The 2024 draft rules also do not cover the testing and demonstration of lawful interception systems, which was previously regulated under the 1951 Rules.

The new rules also lower the threshold for maintaining confidentiality compared to the previous regulations, which may impact oversight and enforcement.